KYCOA Feb 15 - Throgmorton - KRS 532.110

Kenneth Throgmorton v. Commonwealth-  

COA, 2/15/13, not to be published-  

The Court remanded the case to the circuit court with directions to enter an order that conforms with the sentencing length restriction in KRS 532.110, as provided in KRS 532.080.  The Circuit Court had run sentences consecutively for cases emanating from two different counties in the judicial circuit for a contemporaneous crime spree.  

At the entry of the first 16 year judgment on four class D convictions, the Circuit Court was silent as to how the sentences from the other county would run.  Two weeks later, in the second county, a total sentence of 16 years was ordered to run consecutive to the 16 years from the other county, for a total of 32 years.  

The Court held such violative of KRS 532.110’s proscription of sentences that would exceed the longest available sentence for one convicted of that class of crime and being a PFO (KRS 532.080).  The Court relied upon the Kentucky Supreme Court’s Opinion in Goldsmith v. Commonwealth, 363 S.W.3d 330 (Ky. 2012), emanating from the same judicial circuit.   

Linda Horsman of the Appeals Branch represented Mr. Throgmorton on appeal, and was assisted by Molly Mattingly, as then-motions attorney, in getting belated appeal granted after the Circuit Court clerk misplaced one of the Notices of Appeal, and Amanda Branham of DPA Paducah, who ably preserved this issue for appeal in circuit court.  

KYCOA Feb 8 - Bounds - Sufficiency of Affidavit

Bounds v. Commonwealth, 2011-CA-000671-MR.  To be published. 

Opinion Affirming by Acree, Nickell and Stumbo concurring.

Issue: sufficiency of affidavit for search warrant.

Affidavit for search warrant of Bounds’ residence contained the following facts:

Citizen Harshfield played an answering machine message for Detective Blanton with Bounds asking Harshfield to purchase “some pills.”  Harshfield said Bounds came by his apartment asking Harshfield bo buy pseudoephedrine.  Harshfield said he had bought pseudoephedrine for Bounds one month prior.  Harshfield said he once saw “Coleman fuel, yellow ammonia stuff, and ether in a can” in Bounds’ car.  An anonymous informant told Blanton that Bounds asked him to purchase pseudoephedrine.  “Meth check” showed Bounds had bought pseudoephedrine.  Blanton had received numerous tips that Bounds was cooking meth.

Bounds challenged affidavit by claiming probable cause was not established because it did not say that pseudoephedrine may be used in the production methamphetamine or that Det. Blanton had any knowledge or training of a link between pseudoephedrine and the manufacture of methamphetamine.  The Court of Appeals panel found such was not needed because it is well known among law enforcement that pseudoephedrine is a key ingredient used to manufacture methamphetamine. 

Bounds also challenged the affidavit because there was no nexus between the suspected criminal activity and Bounds’ residence.  “The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).  In response, the Court of Appeals found that “in the case of drug dealers evidence is likely to be found where the dealers live.”  Beckam v. Commonwealth, 284 S.W.3d 547 (Ky. App. 2009).  The Court of Appeals concluded that they discern no meaningful distinction between a person dealing drugs and a person manufacturing drugs with respect to where that person may store drugs and related drug paraphernalia and that it is reasonable to assume a person who manufactures drugs does so at his residence.

Contributed by Molly Mattingly 
  

KY COA Feb 1 - Gamble- Second-Degree Trafficking and PFO

Gary Gamble, Sr. v. Commonwealth- COA, rendered 2/1/13, not to be published - The Court reversed and remanded when it found that the new second-degree trafficking statute (KRS 218A.1413(2)), which classifies second-degree trafficking as a Class D felony with a maximum sentence of three years, prohibits sentence enhancement under the PFO statute.  

Steven Buck of the Appeals Branch represented Mr. Gamble on appeal, and Michael Bass  and Steven Goble used novel motion practice to preserve the issue for appeal in circuit court.

Contributed by Molly Mattingly